Washington, DC — The Institute for Free Speech has filed an amicus brief in Murthy v. Missouri, formerly known as Missouri v. Biden, urging the Supreme Court to establish a clear, robust prohibition against government officials privately soliciting the removal or suppression of lawful political speech.
The brief, written and filed by Institute for Free Speech Senior Attorneys Charles “Chip” Miller and Brett Nolan, asks the Court to craft such a rule after Biden Administration officials flagged online content for removal and asked social media companies to deplatform users and downgrade certain speech it deemed “misinformation,” particularly speech related to discussions of vaccines and COVID-19.
“The Constitution protects private actors from censorship—it does not protect the government from criticism,” the brief explains. “If the First Amendment means anything, it must prevent this kind of interference in the marketplace of political ideas.”
The brief urges the Court to “hold that the government violates the First Amendment when it privately solicits a third party to remove another person’s lawful political speech from the public discourse.” Such a bright-line rule “prevents most of the problematic jawboning” that interferes with political speech and “gives the First Amendment the ‘breathing space’ it needs ‘to survive,'” the brief notes, quoting Citizens United v. FEC.
This rule would prevent improper government interference in political debate on private online platforms, but it would do so without jeopardizing legitimate government speech interests. The brief goes on to explain that allowing public officials to secretly ask private companies to censor political adversaries—as was the case in Murthy v. Missouri—turns the First Amendment on its head.
“The Free Speech Clause protects private speakers from the government,” not the other way around, clarifies the brief, arguing that the Court should make clear that public officials cannot weaponize their influence by secretly requesting or demanding third parties that host speech to engage in viewpoint-based censorship.
The Institute also urges the Court to reject the administration’s argument that the “government speech” doctrine permits public officials to secretly induce social media platforms to censor opposing political viewpoints. The brief highlights that the Court has never recognized a First Amendment right of government officials to suppress the lawful speech of private citizens.
“Put simply, the government does not get to engage in viewpoint discrimination against private speech on private platforms by hiding behind its own speech as a tool of suppression,” notes the brief.
The Court’s decision in Murthy v. Missouri will play a crucial role in determining the constitutional boundaries of what government officials are permitted to say and do to influence third parties in the realm of political speech.
To read the amicus brief in the case Murthy v. Missouri, click here.
About the Institute for Free Speech
The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.
